A federal law taking effect Tuesday makes it illegal for anyone to sell children's toys, books, clothes and jewelry if the items contain virtually any lead or phthalates, chemicals commonly found in plastics. But testing whether the products contain either is not required for a year. And a bill co-sponsor told the agency in charge of enforcing the ban that it doesn't necessarily have to do so.
So is a collection of librarians, department stores, thrift shops and work-at-home eBay sellers.
The Consumer Product Safety Improvement Act, signed by President Bush in August, was supposed to clear up confusion for consumers and businesses about the safety of items sold for children under age 12.
The law came about after a 2007 outcry and recall of lead-tainted toys and children's products, many from China. It sets limits on how much lead or phthalates are allowable and requires manufacturers, importers and retailers to prove their products or clothing have been tested.
But late last week — bowing to pressure from businesses and librarians — the Consumer Product Safety Commission changed course and delayed the testing requirement until February 2010. It kept the ban in place and is writing rules aimed at clarifying much of the confusion, but those will not be finalized for months.
Businesses and safety advocates are polarized and perplexed.
Toy Industry Association President Carter Keithley says the decision amounts to a "don't ask, don't tell, but don't sell" policy.
Lead has been banned for decades in house paint and in paint used on toys because it causes brain and kidney damage. Phthalates are linked to genital malformations in boys and interfere with the endocrine system.
Along with prohibiting lead or phthalates in kids' products, the new law makes other safety standards — for cribs, high chairs, strollers and other items — mandatory.
Once the testing requirement kicks in, manufacturers, importers and retailers must have certificates showing their products were tested and meet the new limits. Testing will cover every aspect of a product or piece of clothing, such as the ribbon on a hair barrette.
Current inventories do not have to be tested for phthalates, but the lead ban is retroactive and includes all products in stock. Many major retailers, including J.C. Penney, are already testing products and requiring their suppliers to do so.
Containing lead but still sold
Items that don't meet the pending new limits are still being sold by businesses large and small. They're made in China, India and even the USA.
In December, independent tests by the Michigan-based Ecology Center found that one-third of 1,500 toys it tested had "medium to high" levels of lead, arsenic, toxic flame retardants or other hazards. About 3.5% of toys and 15% of children's jewelry had lead levels above 600 parts per million, according to the report, found at HealthyToys.org
There were 69 recalls of toys containing lead in 2008, and there are seven already this year, according to CPSC records.
Environmentalists and children's health advocates say lead at any level causes brain damage. The science on phthalates is much newer, but studies in humans and animals have linked them to health problems in young boys.
Parents and pediatricians say they don't want to gamble with children's health and just want to be able to buy toys with confidence.
"Try telling a mother whose child was poisoned by a toy containing lead that we need another year to figure this out," says Mary Tyler Johnson of New York City, an environmental consultant who has a 2-year-old son.
Pediatrician and author Harvey Karp notes that the industry voluntarily agreed to get the lead out of toys years ago: "We're only asking industry to provide toys that don't contain probable or proven childhood toxins. There's no excuse for putting unsafe toys on the market."
But it's not that easy, say those who make and sell the products.
Facing business closures
Jolie Fay, who owns the Skipping Hippos clothing company in Portland, Ore., fights tears as she explains how she invested $60,000 in fabric and trim for the kids' ponchos she makes with the help of a mother and daughter who also work out of their home.
The commission's decision last week means she won't be forced out of business this fall, she says. She recently tested her inventory herself — finding it lead-free — and hopes to sell the clothing by next February.
But unless CPSC exempts certain fabrics by then, Fay would be required to pay for third-party testing of the material and trim she uses for the ponchos. She's received estimates as high as $90,000 a year for the testing, an amount she says would kill the business that supports her family of four.
"I'd never called a congressman's office in my life, and I'm bawling to these 20-year-old (congressional aides) in Washington
CPSC spokesman Joseph Martyak says his commission has gotten thousands of calls and e-mails from concerned small-business owners and even school librarians.
Some librarians told the commission that the law would put them out of work because children's books made before 1980, when lead was allowed in ink, would be banned. He says the agency is "trying to find a way of addressing children's books."
"A lot of parents are on blogs saying, 'This is crazy,' " says Martyak. "They say, 'What are we going to do if children can't get the books they want in the library?' or that '$20 gets us so much in a thrift shop.' "
It's an unfathomable case of a government gone mad to many small-business owners, including thrift-store owner Sharon Smith of Portland, Ore. She has tested the zipper pulls and buttons on used kids' clothing but can't draw enough conclusions to confidently sell anything but zipper-, snap- and button-free pullovers unless preowned clothing is exempted.
Martyak says the commission would not be able to exempt used clothing, only certain types of apparel such as plain T-shirts.
"The commission has given retailers half-loaded guns and is asking us to play Russian roulette with our livelihoods by saying we don't have to test, but we will be liable if the products are not in compliance," says Smith, who sells new and used clothing at A Repeat Performance.
If they violate the law, retailers and manufacturers would be subject to civil and criminal penalties. The law even calls for up to five years in jail, a punishment CPSC has used only for repeat offenders of other laws.
Even some of the largest businesses say the economy has taken such a toll on their bottom lines, they shouldn't have to tackle this now. A coalition of manufacturing and retail groups representing retailers including Wal-Mart petitioned CPSC last week for a six-month delay in the effective date of the lead-content limits in the new law, citing current business conditions and all of the other uncertainties with compliance.
"With so many businesses on the brink of financial ruin, now is not the time to add any unwarranted and costly burdens on job providers," wrote Rosario Palmieri, National Association of Manufacturers vice president.
"Obviously, we want to do the right thing, but we want to make sure we're not overburdened with compliance," says Jonathan Gold, a National Retail Federation vice president.
CPSC Commissioner Thomas Moore says the commission hadn't done enough to make the home crafters and other smaller businesses aware that they were already supposed to be meeting certain safety standards.
Fortunately, he notes, "They are likely making safe products, or they would have come to our attention."
Johnson isn't so sure.
"It is an outrage that our children are being harmed — often by the very products we buy to nurture and keep them safe," she says.
Fay, the business owner and mother of two young daughters, says she's so cautious that she doesn't even let her kids eat anything with high-fructose corn syrup and certainly wouldn't take any chances with lead. But she says this is no time to do anything to hurt families struggling to make ends meet by selling children's products or buying them secondhand.
"People don't know how far-reaching this law is and how it's going to affect everyone," says Fay.
CPSC and Congress "are pointing the finger back at each other, and none of them are taking responsibility to make the changes needed."